State Of Louisiana VS Murray Smith
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL y Jl FIRST CIRCUIT NUMBER 2007 KA 0403 STATE OF LOUISIANA VERSUS MURRAY SMITH Judgment Rendered Appealed from September 14 2007 the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge State of Louisiana Trial Court Number 04 05 0518 Honorable Todd Hernandez Judge Presiding Doug Moreau Attorneys for Appellee Aaron Brooks State of Louisiana Dylan C Alge Baton Rouge LA Donald North Baton Rouge LA BEFORE Attorney for Defendant Appellant Murray Smith WHIPPLE GUIDRY AND HUGHES JJ WHIPPLE J The defendant obscenity a examination Mun ay Smith violation of LSA R S was 14 106 held wherein the his right to probable trial a by jury During notice of the evidence adduced of the trial the defendant sentenced imprisomnent to at The trial failed not parish jail for of enor as The trial agreed comi to take judicial At the conclusion The defendant charged one comi The defendant waived preliminary examination as preliminary who also witnessed the of obscenity guilty A guilty his observations bench trial the a the in the pled year was The defendant now follows ed when it convicted the defendant because the court relied state charge found was appeals asserting two assignments 1 regarding for the cause He bill of infonnation with investigating officer commission of the offense testified found sufficient charged by was en on video surveillance evidence produce and but the prosecution exculpatory evidence to defense counsel in violation of the defendant s Brady and due process rights 2 to The trial comi or tmn over ed when it convicted the defendant of en obscenity because the crime of obscenity requires intentional exposure of enumerated body parts and the defendant did not intentionally expose any such body parts certain We affirm the conviction and sentence FACTS The record reflects that on June 19 visited the Louisiana State Capitol making jewelry while sitting outside at the Public Safety D P S On this Chris Holmes observed the defendant be suspicious alTived at the s as he often did The defendant claimed parle Officers had observed the defendant in the occasions without any incident to Park 2004 the defendant particular day activity in the with the he enjoyed Depaliment of area on numerous however D P S park prior Sergeant and found his conduct Although the defendant had been wearing long pants when he Sgt Holmes Sgt Thomas park he was later seen wearing ShOlis 2 Wild and another officer surveillance cameras decided around the set up Holmes and Wild the defendant crotch area and to until they were they both observed his with obscenity called as a The very close to him exposed As the officers Sgt Wild testified at making jewelry testified on He claimed he his lap and close his knees or his was Sgts stepped while the a still seated The angle seeing defendant from them in front of the defendant Thus defendant preliminary was examination explained genitals that protluding fi om his shorts only he as a behalf at the own He claimed he was charged Sgt Holmes must as he in the innocently park black tray a have been mistaken The defendant sat as area of skin in the to what not open explained that exposed when they approached small denied He The defendant stated he did camera were was trial black shorts with wearing reach into his crotch the officers claims that his He passed by After car penis and thus the officers they observed from the surveillance untrue the to rebuttal witness at the trial defendant on erect non the video on opening his knees reaching into his approached prevented the intentionally exposing his genitals positioned observed approach the defendant while he from which the officers defendant perimeter of the park According exposing his genitals each time a officers decided was was observe the to genital were area also was sat BRADY VIOLATION Assignment of Error In his first references over were assigmnent made the defense to to of error the defendant argues that video surveillance no v Maryland surveillance tape although was ever The defendant contends this evidence constituted evidence and should have been made available Brady 1 373 U S 83 83 S Ct 1194 to him prior to trial 10 L Ed 2d 215 several tmned exculpatory pursuant 1963 to The purpose of prejudice to Mitchell 412 defendant to defendant that could arise from a 2d 1042 So properly prepare his defense writ 501 denied pretrial discovery procedures is assess State So 1044 the strength 2d 228 1982 La 1987 of the such may constitute reversible 1118 a prejudice La to guilt must produce the testimony of 92 S Ct 763 substantial basis for prosecutor to infonnation respond to the trial 106 96 S 2d 1237 1241 The Bagley a by lulled the failure to State enor 1st Cir 1986 App 423 So Ray v fully into a disclose 2d 1116 test 766 reasonable Brady the a expanded state upon witness where the guilt or reliability innocence 31 L Ed 2d 104 Giglio 1972 subject matter include evidence that to or v Where of such a credibility of that U S a either by furnishing judge for an in request is material the information camera inspection Ct 2392 2399 49 L Ed 2d 342 405 U S 1976 to is See U S State v v or if require the by submitting or 150 specific request claiming materiality exists it is reasonable for determining materiality 667 105 S the Louisiana La in Agurs the 427 Cobb 419 So La 1982 473 U S applied by 970 971 La him in order to defendant is a s case This rule has been made for such information and the U S 97 590 Supreme Comi decision witness may be determinative of a If against s case a evidence that is favorable to the accused where it is material punishment or impeaches 154 155 v 1982 Under the United States request of the state State Discovery procedures enable of the state misapprehension strength surprise testimony 496 So 2d 583 Roy v La eliminate unwananted to 1986 Ct 3375 Supreme As set forth in probability was 87 L firmly established Ed 2d 481 1985 Court See State Bagley the evidence is material v Rosiere that had the evidence been disclosed result of the proceeding would have been different A 4 to reasonable in U S v and has been 488 So only 2d 965 if there is the defense the probability is a sufficient to undermine confidence in the outcome probability 682 Motion to to trial the defendant herein filed testified that approaching the defendant to prior at the trial conducted video surveillance of the defendant Capitol Park They later to the side and would pass cars On actions s when the officers was state examination the and violated trial the to lemned from the at the subj ected to one objected App during an to at ilTegularity that at the trial transcripts to obtain his whenever the defense preliminary examination failed of discovery not appealed v not and or testify been to the accordingly after at a Under LSA verdict unless it the defendant in two of the state s any information about them opportunity This comi noted that the trial and that the defendant had 5 ever Bennett 591 So 2d 1193 had been denied the prepare his defense a having to trial without testimony of provided with lodge to of the fact that he had proceeded In State OCCUlTence objected elTor saying that he had witnesses did be preliminary Even after writ denied 594 So 2d 1315 La 1992 assigmnents open file cannot assuming Even of the alleged discovery violation or elTor the time of the evaluate the testimony and two located pulling genitals the timeliness of the disclosure of this information 1st Cir 1991 of his witnesses testimony the discovery to video surveillance the defendant C Cr P art 841 La cameras observed to expose his questioned were indicate contemporaneous objection was question they had using binoculars was the and Holmes both using surveillance manner During a by arguendo that the objecting the date in The defendant positioning them in a Defense and appeal the defendant complains that the first lmowledge he had of any surveillance been on to Discovery Sgts Wild additional surveillance set up clearer view of defendant shorts Motion for a Discover and Disclose Evidence Favorable preliminary examination proceeding and a at 105 S Ct at 3383 Prior at 473 U S Bagley one not to of the lodged a contemporaneous objection C CrP art 841 at 1197 We this see no court the other to refused basis for to during the trial Thus based s review the deviating from this The purpose of the contemporaneous the v opportunity to rule Hilton 99 1239 p denied 2000 0958 defendant from then later State resorting to make La sitting Duplissey v failed 12 to the objection La on App 1st 3 9 01 on an any and thereby prevent 2d 593 La he is appeal Accordingly this assigmnent allow or cure an error State might have 1989 a 2d 1027 1035 The rule also writ prevents on a the verdict been corrected at trial Because the defendant herein type of contemporaneous objection disclose surveillance evidence 2d judge 764 So 113 that 591 So trial to gambling unsuccessfully on an error 550 So 2d 590 objection rule is So LSA procedural requirement herein Cir 3 31 00 786 an error appeal and Bennett assignment on to the alleged failure to precluded from raising this argument of error presents nothing on for review SUFFICIENCY OF THE EVIDENCE Assignment of Error In his second insufficient assigmnent of error 2 the defendant suppOli the conviction of obscenity to asselis the evidence was the defendant Specifically argues the state failed to prove the essential element of intentional exposure A conviction based Process insufficient evidence the viewing sufficiency of the evidence the evidence in the this most light stand cannot See U S Const amend XIV La Const art I challenging after on S 2 In court must favorable to as it violates Due reviewing consider the 61 L Ed 2d 560 So 2d 1305 Jackson 1979 1308 1309 v Virginia 443 U S 307 319 See also LSA C Cr P art 821 B La 1988 6 whether prosecution rational trier of fact could have found the essential elements of the crime reasonable doubt claims 99 S State Ct v any beyond 2781 a 2789 Mussall 523 Louisiana Revised Statute 14 1 06 A The crime of obscenity is the provides in pertinent part intentional 1 in any public place or place open to Exposure of the genitals the public view with the intent of arousing sexual desire or which to prurient interest or is patently offensive appeals The elements of the crime required the genitals in public and b the arousing sexual desire offensive 1071 State v 2 or state to prove exposure either appealed Gradick 29 231 to the 5 La p the only defendant eyewitnesses testified detennination prurient interest the trial and the 3 or patently was 2nd Cir 122 97 687 So court was The defendant claimed he lap he worked from as moving his knees alleged required intentionally exposing position become in which he exposed any to innocently was black tray he had exposure after the officers shorts and the to or a officers investigating making jewelry when approached by the officers area done with the intent of was App exposed his 2d 1073 Since his 1 that defendant a make who credibility a seated in the He claimed his hands positioned there were were near He denied part of his genitals park Insofar ever as approached the defendant claimed he had was seated caused The defendant did not recall in his little skin a whether he was the on genital wearing underwear Despite the defendant he sat down the that the officers sufficient to guilty were ShOlis to the side sat claim that a little skin accidentally exposed verdict returned indicates that the comi more credible We find the was observed testimony intentionally exposing his genitals exposed penis as cars obviously as decided of the officers was Both officers testified putting his hand in his crotch The officers fmiher testified that upon observed his was establish the essential elements of the crime that the defendant he s area passed approaching and pulling his the area the defendant where they It is well established that in the absence of intelnal 7 contradiction conclusion App State 174 obscenity obscene irreconcilable conflict with if believed testimony 2d 168 or v by the trier of fact is sufficient support Thomas 2005 2210 p 8 La writ denied 2006 2403 victim a public s or witness App La 4 27 07 for exposure occurred See State 955 So Magee v a one witness requisite 1st Cir 6 9 06 2d 683 testimony is sufficient s In factual 938 So a case establish that to 517 So 2d 464 s of an 466 La 1st Cir 1987 As the trier of fact the trial court pmi the testimony of any witness about factual credibility matters The trier of fact not to evidence 2261 pp 5 6 La App weight As case a thorough detennination of s light most concluded that the state of the crime of obscenity F or the 721 So foregoing verdict s favorable a assignment reasons guilt be given evidence will not State 932 the reweigh Taylor v is 97 See also State v convinced that presented in viewing the rational trier of fact could have reasonable doubt the essential elements of error the defendant s is without merit conviction and affirmed CONVICTION AND SENTENCE AFFIRMED 8 to 83 are a in determination of the find that the evidence We to the state proved beyond This we or of the evidence not its we 2d 929 772 So 2d 78 review of the record court court appellate an 1st Cir 9 25 98 suppOlis the trial evidence in the one in whole conflicting testimony a upon determination of the Mitchell 99 3342 p 8 La 10 17 00 After depends reject or weight fact finder a accept of the review appellate to oveliurn s to Moreover when there is of the witnesses the matter is subject free was the resolution of which sufficiency this physical evidence sentence are
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